How not to think about gun control laws (or speech restrictions)

|The Volokh Conspiracy |

I posted yesterday about a case (in which I'm consulting) that challenges Cal. Civil Code § 26820:


This drew an odd comment that struck me as worth analyzing:

Just what the nation needs, an opening door to the prospect of a literal arms race conducted with TV commercials touting the firepower advantages of various semi-autos.

The commenter conceded that the law is unconstitutional, but suggested that people shouldn't help challenge it:

I'm asking you, what are your values here? … Is there something wrong with a lawyer who says, "You know, that law can serve a good purpose, but pushing it to the max in the most extreme way doesn't serve a good purpose, and it isn't something I personally want to do?"

Now while I'm generally skeptical of gun control laws, there are plausible arguments for some such laws, even if I on balance think that the arguments don't carry the day against the counterarguments. For instance, a common argument against allowing people to carry weapons in public is that even otherwise law-abiding people might get angry, get drunk, or needlessly create or escalate a confrontation if they had a gun, and as a result unnecessarily kill or injure someone. True, the argument would go, such laws aren't going to protect us against mass murderers or even armed robbers, who are obviously willing to deliberately violate many laws that are much more serious than gun control laws. But the carry restrictions might protect us against people who are law-abiding when they have time to deliberate (when they decide whether to carry a gun), but who can do something wrong or foolish on the spur of the moment (such as misuse a gun that they did decide to carry).

My sense is that, on balance, the benefits of people being able to defend themselves with guns in public places exceed the risk, especially given the track record of the concealed carry rights revolution over the past 30 years. But the argument against allowing gun carrying strikes me as sensible, because it sets forth a plausible explanation of why a particular policy would avoid certain kinds of harms caused by a rival policy. It focuses on what an actual law might actually do, and explains why it might actually do it.

What troubles many gun rights supporters, though, is how many pro-gun-control (or, here, anti-gun-advertising) arguments lack this sort of plausible explanation. Consider some things about the comment that prompted the post:

1. The California law bans on-premises signs promoting handguns. It doesn't ban TV commercials. I don't know of any law banning TV commercials for guns. Yet somehow, despite this, I don't think we've seen "a literal arms race conducted with TV commercials touting the firepower advantages of various semi-autos," at least at any level that even pro-control forces would see as materially threatening the welfare of the "the nation." Why would striking down a ban on on-premises handgun advertisements produce such a "literal arms race"? If you're going to make a consequentialist argument against a law, shouldn't you explain just why the law would have the allegedly bad consequences?

2. In any case, say that someone is "touting the firepower advantages of various semi-autos." What exactly gives a semi-automatic weapon a practical "firepower advantage[]" over other guns? It could be magazine size, in the sense that higher capacity magazines let one fire more often between reloading. But again this law doesn't focus on magazine size advertisements—and in any event the way California deals with this question (rightly or wrongly) is by actually regulating magazine size. So in California you couldn't advertise sufficiently high-capacity magazines even without the law, because they are illegal to sell.

Of course, another common possible firepower advantage is caliber (though again the law doesn't focus on advertisements touting guns' higher caliber); a .45 is certainly more powerful than a .22. That makes it more deadly when used criminally—and more effective at stopping attackers when used for self-defense. Not everybody's "values," as I'm sure the commenter knows, are therefore much opposed to people owning higher-caliber weapons. And though it's all well and good to appeal to our better natures, don't you first have to persuade us that the thing you're dreading (people buying higher-caliber handguns) is something we should dread, too?

3. Finally, note the lack of a sense of proportion in the condemnation of "pushing [the law]"—presumably, the protection of commercial speech—"to the max in the most extreme way doesn't serve a good purpose." I hadn't really thought that allowing gun stores to display handgun signs (alongside their rifle and shotgun signs, and the off-premises handgun signs they are free to display) is pushing First Amendment law "to the max in the most extreme way." Again, shouldn't such a claim be supported with a plausible argument, rather than just asserted as if it's obviously true?

There are interesting debates to be had about gun control policy. But sensible arguments on this subject have to actually explain why a particular policy will solve a particular problem, or why a particular other policy will exacerbate it.